A Kings County, New York court has held that a plaintiff may obtain social media information (such as another’s user information and evidence posted through social media) as part of pre-suit discovery under New York law. This decision could have ramifications in a number of jurisdictions that permit pre-suit discovery to preserve evidence and/or obtain identities of witnesses or potential parties. See, e.g., Fed. R. Civ. P 27; N.J. R. Civ. P. 4:11-1; Tex. R. Civ. P. 202. N.Y. C.P.L.R. 3102.
In Lemon Juice v. Twitter, Inc., 44 Misc. 3d 1225(A) (N.Y. Sup. Ct. Aug. 29, 2014) the plaintiff complained that an anonymous third party had committed various torts (including intentional infliction of emotional distress) by posting information on a Twitter account containing the plaintiff’s name.
Pursuant to New York rules of civil procedure, the plaintiff sought an order directing Twitter to:
- disclose basic subscriber information, records, and IP addresses for the account at issue, and
- preserve certain evidence (i.e., the offending tweets and accompanying pictures).
The court held that the plaintiff’s allegations were sufficient to state a prima facie cause of action, which was a prerequisite under the rules to obtaining any pre-suit discovery and which was not contested by Twitter. Having made a prima facie case, the court held the identity of the anonymous user was necessary for the plaintiff to seek appropriate redress. Only Twitter had this information, so the court ordered Twitter to disclose the subscriber information sought by the plaintiff.
Similarly, the tweets and accompanying photos would be necessary evidence in prosecuting the plaintiff’s claim. The court therefore ordered preservation of this information as well.
As of November 11, 2014, Twitter has not appealed the decision.
This article was prepared by James V. Leito IV (james.leito@nortonrosefulbright.com / +1 214 855 8004), an associate in Norton Rose Fulbright’s litigation practice group.
